Regulatory Taking

Presentation given by Frank Jenkins during the Winter 2009 GAZA conference.

 

Taking under Georgia Constitution

This issue is the constitutionality of the existing zoning, not whether the proposed zoning is constitutional or provides a higher and better use. In a zoning case, the most common challenge is to the constitutionality of the existing zoning classification under a takings analysis.

 

The zoning ordinance is presumptively valid. "The presumption that a governmental zoning decision is valid can be overcome only by a plaintiff landowner's showing by clear and convincing evidence that the zoning classification is a significant detriment to him, and is insubstantially related to the public health, safety, morality, and welfare. Only after both of these showings are made is a governing authority required to come forward with evidence to justify a zoning ordinance as reasonably related to the public interest. If a plaintiff landowner fails to make a showing by clear and convincing evidence of a significant detriment and an insubstantial relationship to the public welfare, the landowner's challenge to the zoning ordinance fails." - Dekalb County v. Dobson, 267 Ga. 624, 626, 482 S.E.2d 239 (1997).

 

The notion that a property is not zoned for its highest and best use, a concept appraisers like to use, does not show that the existing zoning imposes a significant detriment. - Gwinnett Co. v. Davis, 268 Ga. at 654 (1997). This is not to say that the significant determinant requirement is an insurmountable burden; courts can and have found a significant detriment on numerous occasions, but the property owner will need to be prepared to put forth a detailed and compelling case on this point.

 

A case to discuss the concept of significant detriment is Legacy Investment Group LLC v. Kenn, 279 Ga. 778, 621 S.E. 2d 453 (2005), which was on appeal from the grant of the local government's motion for summary judgement. There, the property owner had paid about $12,000 per acre for land zoned for agricultural land, with the presumption that it would be rezoned for residential uses. When the rezoning was denied, the property owner appealed, arguing that it could not be developed in an economically feasible fashion based upon the purchase price. The suprerior court found that the fact that the property owner overpaid for the property did not mean that the zoning ordinance was a significant detriment to the property. On appeal, the Supreme Court reversed because the evidence was that the property would have to be purchased for no more than just over $5,000 per acre in order to be developed in an economically viable manner, and the county's appraiser said the property was worth between $5,000 and $9,000 per acre. Thus, giving the non-movant the benefit of all the inferences from the evidence, the property would have to be purchased for several thousand dollars less per acre than it was worth in order to be developed in an economically feasible manner. The court also mentioned that the evidence was also that the property was not suited for agricultural uses; while not discussed much by the court, this would seem to be an important piece of evidence.

 

After a plaintiff shows significant detriment, he still needs to prove that the current zoning is insubstantially related to the public health, safety, morality, and welfare. This requires proof that there is no logic to the existing zoning classification. It can be shown by pointing to the incompatibility of the subject zoning with the neighborhood or the changing character of the neighborhood. However, it can be difficult to prove if the property is simply on the boundary of the zoning district, which is commonly referred to as a fringe area.